in the supreme court of bangladesh … “let a rule nisi be issued calling upon the respondents to...
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IN THE SUPREME COURT OF BANGLADESH APPELLATE DIVISION
PRESENT:
Mr. Justice Md. Muzammel Hossain
-Chief Justice
Mr. Justice Surendra Kumar Sinha
Mr. Justice Md. Abdul Wahhab Miah
Mr. Justice Hasan Foez Siddique
Mr. Justice A.H.M. Shamsuddin Choudhury
CIVIL APPEAL NO.41 OF 2011. (From the judgment and order dated 04.02.2010 passed by
the High Court Division in Writ Petition No.11685 of 2006.)
Bangladesh, represented by the
Cabinet Secretary, Cabinet
Division, Bangladesh Secretariat,
Dhaka, 1000.
Appellant.
=Versus=
Md. Ataur Rahman and others: Respondents.
For the Appellant :
Mr. Abdur Rob Chowdhury,
Senior Advocate, instructed by
Mrs. Sufia Khatun, Advocate -
on-Record.
For the Respondent No.1:
Mr. Rokanuddin Mahmud,
Senior Advocate, with Mr.
Asaduzzaman, Advocate,
instructed by Mr. Syed
Mahbubar Rahman, Advocate-
on- Record.
For the Respondent No.2:
Mr. Murad Reza, Additional
Attorney General, instructed
by Mrs. Mahmuda Begum,
Advocate-on-Record.
For the Respondent No.3:
Mr. Murad Reza, Additional
Attorney General, instructed
by Mr. Nawab Ali, Advocate-
on-Record.
Date of hearing : The 6th
January, 2015, 8th
January, 2015 , 9th
January,
2015 and 11th
January, 2015.
Date of Judgment : 11th
January, 2015.
2
(J U D G M E N T)
Md. Muzammel Hossain, CJ: This appeal, by leave, is directed
against the impugned judgment and order dated 04.02.2010 passed by
a Division Bench of the High Court Division in Writ Petition No.11685
of 2006 making the Rule absolute in modified form declaring the
impugned Warrant of Precedence 1986 without lawful authority and of
no legal effect and directing the writ Respondent No.1 to prepare a new
Warrant of Precedence on the basis of the eight-point directives within
60(sixty) days of receipt of the judgment placing the District Judges,
Additional District Judges, Chief Judicial Magistrates and Chief
Metropolitan Magistrates in the same table above the Chiefs of Staff of
the Defence Service of Bangladesh in the Warrant of Precedence.
The facts for disposal of this appeal, in brief, are that the writ
petitioner-respondent No.1 while serving as an Additional District and
Sessions Judge and holding the Office of Secretary-General of
Bangladesh Judicial Service Association filed writ petition No.11685 of
2006 under Article 102 of the Constitution challenging Warrant of
Precedence, 1986 (revised up to 12.04.2000), issued vide Cabinet
Division’s Notification No.CD-10/1/85-Rules/161, dated 11.09.1986 by
the Writ respondent No.1, the appellant placing the members of judicial
service and Constitutional posts equally with or subordinating them to
the employees of the Republic particularly to the administrative cadres,
in contravention to the spirit of the Constitution. A Division Bench of
the High Court Division heard the petition and being satisfied issued
Rule Nisi on the following terms:
3
“Let a Rule Nisi be issued calling upon the respondents to
show cause as to why the impugned Warrant of Precedence
issued vide Cabinet Division’s Notification No.CD-10/1/85-
Rules/161, dated 11.09.1986 as revised up to 12.04.2000
(Annexure-A to the writ petition) equating with or
subordinating District Judges and other judicial officers
equivalent to the rank of District Judges to the concerned
officers of the administrative and other cadres therein
should not be declared to have been issued without lawful
authority and to be of no legal effect and why the
respondents should not be directed to place District Judges
and other judicial officers holding the rank of District
Judges are on a par with the holders of Constitutional posts
and above he positions of the persons in the service of the
Republic in the aforesaid Warrant of Precedence and/or
such other or further order or orders passed as to this Court
may seem fit and proper.”
It has been stated that the writ petitioner filed the writ petition in
his capacity as a concerned, affected and aggrieved person to protect the
interest of indefinite number of people of Bangladesh and to uphold the
Rule of Law by way of public interest litigation and to prevent illegal
4
and arbitrary placement of the members of the judicial service and the
Constitutional Office holders in inappropriate places in the Warrant of
Precedence in derogation of their dignity and status in public perception.
The writ petitioner being committed to the welfare of the Republic and
to uphold the Rule of Law brought the petition “pro bono public”
challenging the impugned Warrant of Precedence.
It has been further stated that in the table of the impugned Warrant
of Precedence, the Chief Justice of Bangladesh being the head of the
judicial organ has been placed at Serial No.4. Some Constitutional office
holders like the Attorney General for Bangladesh, Comptroller and
Auditor-General and Ombudsman have been placed at Serial No.15,
while the members of the different services of the Republic like the
Cabinet Secretary, the Chiefs of Staff of the Army, Navy and Air Force
and the Principal Secretary to the Government have been placed at Serial
No.12 in the said table. District Judges have been placed at Serial No.24
equating them with the Deputy Commissioners who are the mid-level
employees of the Republic. The impugned Warrant of Precedence does
not provide for any rational basis and as such it is arbitrary. In the
scheme of our Constitution, the post of the District Judge is the highest
post of the Bangladesh Judicial Service. The required qualification for
appointment to the post of the District Judge is 15 (fifteen) years service
5
including two years experience as an Additional District Judge. In spite
of the directions given by the Appellate Division in the case of
Secretary, Ministry of Finance Vs. Masdar Hossain and others reported
in 52 DLR (AD) 82 (hereinafter referred to as Masdar Hossain’s case)
the Government had failed to introduce a separate pay scale for the
members of the judicial Service. The initial pay scale of a District Judge
being at grade 3 of the National Pay Scale of 2005. The members of the
other tiers of the Judicial service are Additional District Judge, Joint-
District Judge, Senior Assistant Judges and Assistant Judges.
It has been further contended by the writ petitioner that the
Judicial Service is not ‘service’ in the sense of employment. The Judges
are not employees. As members of the Judiciary, they exercise the
sovereign judicial power similarly as the members of the cabinet
exercise the executive power and the members of the Legislature
exercise the legislative power of the Republic. In a democracy such as
ours the Executive, the Legislature and the Judiciary constitute the three
pillars of the State and by such a conception, it is intended to be
conveyed that the three essential functions of the State are entrusted to
the three organs of the State and each one of them in turn represents the
authority of the State. Those who exercise the State powers are the
Ministers, the Legislators and the Judges but not the members of their
6
staff who implement or assist in the implementation of their decisions.
So in that view of the matter, the members of the Judicial Service cannot
be equated with the administrative executives: rather as the holders of
the State power, they are on a par with political executives and
legislators. Judicial independence cannot be secured by making mere
solemn proclamations about it; rather, it has to be secured both in
substance and in practice.
The society has stake in ensuring the independence of the
judiciary and no price is too heavy to secure it. Subordinate courts
occupy a special place in the Constitution under Articles 114 to 116A.
The recruitment and the conditions of service of the members of the
Judicial Services are regulated by the Rules made by the President under
Article 115 of the Constitution. Since as per Note: 1 of the impugned
Warrant of Precedence, the order therein is to be observed for State and
ceremonial occasions as well as for all purposes of the Government, has
disparaged the position of judicial officer in the estimation of the people.
It is necessary for them in the public interest and in the interest of justice
to be seen to be of a rank sufficient to command obedience to their
judgments and orders. As the Warrant of Precedence has an effect on the
public psyche, it should necessarily reflect the rank, status and
precedence of the District Judges properly. So the relative ranking
7
of the functionaries in the table of the Warrant of Precedence is of a
significant nature, and not merely of a ceremonial nature. This in fact,
affects the ability of the District Judges and other judicial officers to
perform their function effectively and independency without virtually
being or being seen to be inferior to certain categories of civil servants.
The placement of the District Judges at Serial No.24 in the table of the
impugned Warrant of Precedence is derogatory to the dignity of their
office and is violative of Article 31 of the Constitution. The impugned
Warrant of Precedence fails to appreciate the dignity of all
Constitutional posts such as the Judges of the Supreme Court of
Bangladesh, Attorney General, Comptroller and Auditor General,
Members of Parliament and Members of the Judicial Service of the
Republic. They cannot be compared with the servants of the Republic
and the members of the Civil Service and the Armed Forces in
Particular. Hence, the impugned Warrant of Precedence is liable to be
struck down as being arbitrary, malafide and ultra vires the Constitution.
The Writ respondent Nos.1 and 3 contested the Rule by filing
affidavits-in-opposition making similar statements of facts.
The substance of their claim is that Chapter I of Part IX of the
Constitution deals with the Service of Bangladesh generally; persons
belonging to the Judicial Service are not members of the civil executive
8
service, though they are in the service of the Republic, does not mean or
imply that they enjoy higher status than that of the person’s belonging to
the Defence Service, Local Government Service and Civil Executive
Service. The service condition stipulated under Articles 133 and 135 of
he Constitution do equally apply to the judicial officers as well as the
civil executive officers. Therefore, civil executive officers are also
within the scheme of the same Constitution and they may certainly be
different in respect of powers and functions from judicial officers. But
for that reason, civil executive officers cannot be treated as inferior to
judicial officers and vice versa. Different services like Defence Service,
Local Government Service, Judicial Service and all other services of the
Republic have been duly considered, contemplated, recognized and dealt
with at different places and under different articles of the Constitution,
as were deemed appropriate by the framers of the Constitution keeping
in mind the broad principles of separation of powers in the scheme of the
Constitution.
Nowhere in the Constitution, it has been contemplated that the
judicial Service shall enjoy a higher rank and status or position than
other services of the Republic. It is contended the terms and conditions
of services of the Constitutional functionaries are regulated and
determined by special laws, and not by Rules, as mandated by Article
9
147 of the Constitution. The attempt of the Writ petitioner to raise the
judicial officers to the level of he Constitutional functionaries is an
unscrupulous attempt to undermine the dignity, status and position of the
Constitutional functionaries. Since the judicial officers are persons in the
service of the Republic, the District Judges have been rightly and
properly placed at Serial No.24 in the table of the impugned Warrant of
Precedence. District Judges hold district-level posts like Deputy
Commissioners and at the district level, they have been shown at the
highest serial number above Civil Surgeons and Superintendents of
Police. Deputy Secretaries to the Government are national-level posts
and for that reason; they have been shown at Serial No.25 not as being
within their respective charge. It is an unfounded claim that District
Judges being the highest post-holders in the Bangladesh Judicial Service
are on the same footing like political executives and legislators. Such a
claim has no legal or constitutional basis.
A Division Bench of the High Court Division by the judgment and
order dated 04.02.2010 made the Rule absolute in a modified form with
eight-point directives upon the writ respondent-appellant to make a new
Warrant of Precedence in accordance with the directives within a period
of 60 days from the date of receipt of a copy of the judgment and order
and to place the District Judges, Members of the Judicial Service holding
10
equivalent judicial posts of the District Judges, Additional District
Judges, Chief Judicial Magistrates and Chief Metropolitan Magistrates in
appropriate places in the Table of new Warrant of Precedence. The
appellant was also directed to submit an affidavit-of-compliance along
with the copy of the new Warrant of Precedence by 13.05.2010.
The Division Bench further held that the writ petitioner had locus
standi to file the writ petition which was filed in the nature of pro bono
public litigation, and the writ petitioner was a person aggrieved within
the meaning of Article 102 of the Constitution; that the Warrant of
Precedence cannot shrug off the disqualification of being arbitrary,
irrational, whimsical and capricious and is subject to the judicial review;
that members of the judicial service are not the creatures of the
Constitution but of law and that they are not Constitutional
functionaries; that the members of the judicial service are persons in the
service of the public; that the administrative executive is always at the
beck and call of the political executives but a judicial officer is
independent in the discharge of his function subject to the provisions of
the Constitution as postulated by Article 116A; that the Chiefs of
Defence Services are subject to the control of the political executives;
that the Warrant of Precedence has to be observed for all purposes of the
Government and that placement of the District Judges above the
11
Administrative and Defence Executives in the table thereof is all the
more necessary with an eye to uphold their rank, priority and status in
public perception and that the impugned Warrant of Precedence is
fundamentally different from those of India, Pakistan and USA and the
impugned Warrant of Precedence is a type by itself.
Being aggrieved by and dissatisfied with the impugned judgment
and order dated 04.02.2010 passed by the High Court Division the
appellant preferred the instant appeal by leave of this court.
Leave was granted to consider the following grounds:
“I. Because civil executive officers are also within the
scheme of the Constitution and as such, they may certainly
be different in respect of powers and functions from judicial
offices, but for that reason, they cannot be treated as inferior
or subordinate to judicial officers, nor the judicial offices be
equated with or treated as subordinate or inferior to civil
executive offices considering the nature and jurisdictional
function.
II. Because neither any constitutional nor any legal right of
the writ petitioner has been violated by the impugned
Warrant of Precedence seeking redress under Article 102 of
the Constitution and that in framing the impugned Warrant
12
of Precedence, the executive government follows the age
old principles, conventions and traditions considering the
functions and authority of respective office(s)/person(s) in
the governance of the affairs of the State and different
neighbouring countries Warrant of Precedence have also
been taken into consideration and that no illegality has
been committed by placing the District Judges at serial
No.24 of the Warrant of Precedence with other persons(s)
of the same rank and status and the High Court Division
acted beyond the jurisdiction in making the rule absolute
directing the respondent No.1 to make a new Warrant of
Precedence placing the District Judges, members of judicial
service holding equivalent judicial posts of District Judges,
Additional District Judges, Chief Judicial Magistrates and
Chief Metropolitan Magistrates in the table above the
Chiefs of Army, Navy and Air Force and the Secretaries to
the government while it remained silent about other class of
officers of the same rank and status employed in the service
of the Republic.
III. Because the Warrant of Precedence as promulgated by the
President of the Republic under the authority of Rule 7 as
13
specified in schedule at Serial No.7 of the Rules of Business
1996, involves the policy decision of the government to be
observed for State and ceremonial occasions as well as
government purposes as a matter of protocol which is neither
amenable to judicial review under Article 102 of the
Constitution nor it is justifiable and that the writ petitioner
cannot be said to have been aggrieved in his power, function,
position and authority by the impugned Warrant of Precedence
and no public interest is involved in the matter.
IV. Because the members of the subordinate judiciary are not
holders of constitutional posts and they are very much in the
service of the Republic and subject to various Acts and Rules
as are applicable to members of other civil service and the
High Court Division committed an error of law by treating the
members of the judicial service at par with the political
executives and legislators and above the administrative and
defence executives.
V. Because the members of judicial service are also public
servants and employees in the service of the Republic and that
the Public Servant (Retirement) Act, 1974, the Provident Fund
Act, 1925, Government Servants (Discipline and Appeal)
14
Rules, 1985 and Government Servant Conduct Rules, 1979 are
equally applicable to the members of judicial service and the
High Court Division committed grave error passing the
impugned judgment without any rationale causing indiscipline
in the governance of the State and affecting harmonious
relationship and polity among the three organs of the State
namely the Executive, the Legislature and the Judiciary.”
Mr. Abdur Rob Chowdhury, the learned Senior Advocate
appearing for the appellant submits that claiming precedence by one
organ of the State over other organs is against the letter and spirit of
separation of powers as a Constitutional principle and may amount to
interference with the other organs of the State violating rule of law. He
contends that the Warrant of Precedence is the prerogative of the
President who is the head of the State and thus the directives of the High
Court Division are derogative to the name, fame and dignity of the
President. There is no distinction between political and administrative
executive in our Constitutional dispensation, inasmuch as, as per Article
55(2) of the Constitution, the executive power of Republic vests in the
Prime Minister not in the Cabinet. It is an unreasonable proposition that
there is a parity in between the members of lower judicial service and the
political executives or legislators, inasmuch as, a member of the judicial
15
service in that case stands on the same footing like that of Ministers and
in such case if a member of judicial service wants to hold an executive
office, he or she needs to be appointed not below the rank of a Minister.
Mr. Abdur Rob Chowdhury then submits that the members of
judicial service should not be equated with political executives and other
Constitutional post holders, who hold the distinct constitutional offices
and their terms and conditions of service being regulated and
determined, not by rules, but by special Acts of Parliament and that
before entering upon their offices, they require to subscribe oaths under
Article 148 of he Constitution. Merely because an administrative action
of the executive may be tested by judicial review does not mean that the
judiciary enjoys higher status over the executive branch. The separation
of judiciary from the executive or for that matter the independence of
judiciary does not mean that the judiciary is above of the executive
branch but that the judiciary is independent in the exercise of its judicial
functions. The civil service as a whole is a part of the executive and
subordinate to the political executives as the subordinate judiciary is also
a part of total judiciary in a similar manner.
Mr. Abdur Rob Chowdhury submits that the judgment of the High
Court Division is based on misconception about nature and purpose of
the Warrant of Precedence which is only used for State and ceremonial
16
occasions. The officials mentioned in the warrant of Precedence are
expected to attend the reception line at the airport when the President
and the Prime Minister is leaving for and coming back from foreign trips
and if the District Judges and equivalent post holders are placed above
the Cabinet Secretary and the Chiefs of Army, Navy and Air force, it
would be obligatory for them to attend the ceremony which would be
against historical precedent.
Mr. Abdur Rob Chowdhury further submits that the Warrant of
Precedence does not indicate or affect the rank, pay and status of a
public servant, no public servant including a District Judge has a right to
be placed in any particular place in the Warrant of Precedence. The
Secretaries of the Government are functioning all over the country and
as such they may not be confined to any special area but the District
Judges, the Deputy Commissioner, the District Superintendent of Police
are in administrative charge of a local area and that the High Court
Division did not properly construe the purpose and objective in
determining their order in the table of Precedence; in the USA and in the
Common Wealth countries like Australia, the precedence of Governors
are fixed in relation to their State but the officials of Ministry and
Departments of Government are decided in relation to their work for the
entire country.
17
The final submission of Mr. Abdur Rob Chowdhury is that the
Legislature, the Executive and the judiciary all have their own broad
spheres of operation, ordinarily it is not proper for any of these organs of
the State to encroach upon the domain of another otherwise the delicate
balance in the Constitution will be upset and there will be reaction and
indiscipline. The impugned Warrant of Precedence was made by the
President of the Republic after careful consideration of the practice
followed in the neighbouring countries as also in the USA and the
Commonwealth countries. The High Court Division in their directives
for making a new Warrant of Precedence by placing the District Judges
and other equivalent judicial officers above the Cabinet
Secretary/Principal Secretary and the Chiefs of Army, Navy and Air
Force has exceeded the historically validated restraint and overlooked
the customs and practices followed in other countries.
Mr. Murad Reza, the learned Additional Attorney General
appearing on behalf of the respondent nos.2 and 3 has adopted the
submissions of Mr. Abdur Rob Chowdhury, the learned Senior Advocate
for the appellant. The learned Additional Attorney General submits that
civil executive officers are also within the scheme of the Constitution
and that they may certainly be different in respect of powers and
functions from judicial officers, but for that reason, they cannot be
18
treated as inferior or subordinate to judicial officers and as such the
impugned judgment and order passed by the High Court Division is
liable to be set aside. He then submits that by the impugned Warrant of
Precedence neither constitutional nor any legal right of the writ
petitioner has been violated and that no illegality has been committed by
placing the District Judges at Serial No.24 of the Warrant of Precedence
with other persons of the same rank and status and that the High Court
Division acted without lawful authority in making the Rule absolute
directing the appellant No.1 to make new Warrant of Precedence placing
the District Judges and members of the Judicial Service holding
equivalent judicial posts of District Judges in the Table above the Chiefs
of Army, Navy and Air force and the Secretaries to the Government. The
learned Additional Attorney General also submits that the impugned
Warrant of Precedence is for State and ceremonial occasions and as such
the expressions “as well as for all purpose of the Government” in note
No.1 be deleted. Therefore he contends that after such deletion there is
no reason for the respondent No.1 to be aggrieved.
Mr. Murad Reza, the learned Additional Attorney General further
submits that in framing the impugned Warrant of Precedence the
appellant follows the age old principles, conventions and traditions
considering the functions and authority of respective officers in the
19
service of the Republic and also different neighbouring countries’
Warrant of Precedence and as such no illegality is committed by placing
the District Judges at Serial No.24 of the Warrant of Precedence. The
learned Additional Attorney General submits that the Warrant of
Precedence as promulgated by the President of the Republic involves the
policy decision of the Government which is not amenable to judicial
review under Article 102 of the Constitution and as such impugned
judgment and order passed by the High Court Division is liable to be set
aside.
On the other hand Mr. Rokanuddin Mahmud, the learned Senior
Advocate appearing for the respondent No.1 submits that the appellant
has admitted that the judicial officers cannot be equated with or treated
as subordinate or inferior to civil executive officers considering the
nature and jurisdictional function and as such placing the District Judge
at Serial No.24 of the impugned Warrant of Precedence is admittedly
illegal, arbitrary and without any lawful authority for which the High
Court Division rightly passed the impugned judgment.
Mr. Rokanuddin Mahmud, learned Senior Advocate submits that
the equal application of the provisions of the Public Servants
(Retirement) Act 1974, the Provident Fund Act, 1925, Government
Servants Conduct Rules, 1979 to the members of judicial service and
20
civil executive officers cannot be a ground to place the District Judges at
Serial No.24, inasmuch as, those provisions are applicable to all the
government servants including those who are not even included in the
impugned Warrant of Precedence.
His further submission is that the impugned Warrant of
Precedence is not only for the purpose of expecting the officials to attend
the reception line at the airport when the President and the Prime
Minister is leaving for and coming back from foreign trips inasmuch as
note No.1 of the impugned Warrant of Precedence has clearly stated that
it is for all purposes of the State and as such the High Court Division
correctly passed the impugned judgment.
Mr. Mahmud, the learned Advocate appearing for the respondent
no.1 submits that the High Court Division did not commit any wrong in
holding that the petitioner is a member of the Judicial Service and the
secretary General of Bangladesh Judicial Service Association who by
way of invoking the Writ Jurisdiction of the High Court Division under
Article 102 of the Constitution has brought to the notice of the Court a
public wrong or a public injury and that is not doubt justiciable and his
membership of the Judicial Service and office hold with the Bangladesh
‘Judicial Service Association’ eminently equip him both with the
sufficiency of interest and the insight and ability to file a pro bono
21
publico litigation and the petitioner is a ‘person aggrieved’ within the
meaning of Article 102 of the Constitution. The High Court Division has
not committed any wrong in holding that a policy decision of the
Government is not subject to judicial review under Article 102 of the
Constitution unless it is arbitrary, whimsical and capricious and in the
instant case the absence of evidence of any discernible guidelines,
objective standards, criteria or yardsticks upon which the impugned
Warrant of Precedence is or ought to be predicated is very much
apparent and as such the Court felt rightly constrained to hold that the
Warrant of Precedence cannot shrug off the disqualification of being
arbitrary, irrational, whimsical and capricious and is, therefore, subject
to judicial review under Article 102 of the Constitution.
Mr. Mahmud then submits that the High Court Division has not
committed any wrong in holding that the Appellate Division in the
decision in Masdar Hossain’s case in paragraph 44 has adopted the
findings and observations made by the Indian Supreme Court in the case
of All India Judges’ Association reported in AIR 1993 SC 2493 for
which the natural corollary is that the Appellate Division has declared a
law to the effect that the members of the Judicial Service are on a par
with the political executives or the legislators and above the
administrative executives which is binding upon the High Court Division
22
in view of the mandate of Article 111 of our Constitution and as such the
impugned judgment is maintainable.
He contends that the Appellate Division on 09.08.2009 observed
in Masdar Hossain Case that “It should be noted that the attitude of the
supposed parallelism of the Judicial Service with the Executive Service
is not the intention of the relevant provisions of the Constitution. The
notion of such parallelism that existed in the past has been abandoned by
the framers of the Constitution and the constitutional reality has to be
materialized in the relevant areas including pay and allowances of the
members of the Judicial Service” and as such in view of the above
observation, the impugned judgment is maintainable.
His further contention is that in course of hearing interlocutory
matter on 08.12.2009 in Masdar Hossain’s case, the learned Attorney
General verbally submitted that he would do his best to highlight the
legal position in this regard to the concerned authorities of the
Government that the Pay Scale of the highest post of the Judicial Service
should be re-fixed having regard to the recommendation of the Judicial
Service Pay Commission and should not be below the Grade No.1 of the
National Pay Scale” and as such in view of the above findings, the
impugned judgment is maintainable.
23
Mr. Rokanuddin Mahmud further submits that the three organs of
the State, namely the Executive the Legislature and the Judiciary are
respectively headed by the Prime Minister, the Speaker and the Chief
Justice and these three organs are to perform their respective functions
within the bounds set by the Constitution. As the political executives,
that is to say, the Ministers including the Prime Minister exercise the
executive power of the Republic, the legislators exercise the legislative
power while Judges of both the Higher Judiciary and the Subordinate
Judiciary exercise the judicial power of the Republic and as such the
impugned judgment passed with the above finding is absolutely
maintainable.
He again contends that in the case of Mujibur Rahman (Md.) Vs.
Government of Bangladesh, 33 DLR (AD) 111, it was held in paragraph
71 that both “the Supreme Court and the Subordinate Courts are the
repository of judicial power of the State” and the High Court Division
rightly held in the impugned judgment that constitutionally, functionally
and structurally, judicial service stands on a different level from the civil
administrative executive service of the Republic while the function of
the civil administrative executive service is to assist the political
executives in formulation of policies and in execution of the policy
decisions is the Government of the day, the function of the judicial
24
service is neither of them and it is an independent arm of the Republic
which sits on judgment over parliamentary, executive and quasi-judicial
actions, decision is and orders and as such to equate and to put on the
same plane the judicial service with the civil administrative executive
service is to treat two unequal as equals and hence the impugned
judgment is maintainable.
His further contention is that the High Court Division has rightly
held that there is no gainsaying of the fact that the Constitution has
accorded special status to the constitutional incumbents for which their
priority comes first in the Warrant of Precedence and the status of the
constitutionally recognized and referred post-holders, though public
functionaries, is ingrained in the scheme of the Constitution. So in terms
of priority their placement should follow that of the constitutional
incumbents and the priority of other public functionaries should be fixed
depending on their relative status.
Mr. Mahmud again contends that the High Court Division has
rightly found that the current Warrant of Precedence in India has not
been challenged by any quarter and as such the priority or status of the
District Judges of India has not been reflected therein as per the ‘ratio’
decided in the case of All India Judges’ Association and that cannot be a
ground to refrain from assailing the impugned Warrant of Precedence in
25
view of the sound jurisprudential base emanating from Masdar Hossain’s
case in our own jurisdiction and hence the impugned judgment is
maintainable and the appeal is liable to the dismissed. The High Court
Division has correctly found that from a bare reading of the Table of the
impugned Warrant of Precedence, it is evident that some constitutional
and public functionaries have been placed together at different serial
numbers haphazardly, arbitrarily, irrationally, inequitably and
unreasonably inasmuch as the Cabinet Secretary, the Principal Secretary
to the Government and the Chiefs of Staff of the Army, Navy and Air
Force have been bracketed together at serial No.12; but stunningly
enough, some constitutional office-holders like the Members of
Parliament have been placed at Serial No.13, and the Attorney-General,
Comptroller and Auditor-General and Ombudsman have been placed at
Serial No.15.
Mr. Mahmud finally submits that the High Court Division has not
committed any wrong in holding that under the constitutional scheme,
the Prime Minister, the Speaker and the Chief Justice respectively head
the three organs of the State, the scheme appears to have been accorded
recognition in the previous Warrant of Precedence of 1975 to the extent
of the Speaker and the Chief Justice being placed at the same Serial No.4
but it appears that quite inexplicably, that arrangement has been
26
disturbed in the impugned Warrant of Precedence where the position of
the Chief Justice has been downgraded by placing the Speaker at Serial
No.3 without any justifiable reason and as such the impugned judgment
is maintainable.
We have considered the submissions of Mr. Abdur
Rob Chowdhury on behalf of the appellant, Mr. Rokanuddin
Mahamud with Mr. Asaduzzaman on behalf of the respondent
No.l, Mr. Murad Raza, learned Additional Attorney General
on behalf of the respondent nos.2 and 3, perused the impugned
judgment and order, and the materials on record.
In determining the locus standi of the writ petitioner-
respondent No.1 the High Court Division having referred to
Article 102 of the Constitution observed that except for an
application for habeas corpus or quo warranto a writ petition in
the nature of certiorari, mandamus or prohibition can be filed
by a person aggrieved. The High Court Division referred to the
English case of Exparte Sidebotham (1880) 14 Ch.D.458
wherein the court defined an aggrieved person is a person
"who has suffered a legal grievance, a man against whom a
decision has been pronounced which has wrongly deprived
him of something, or wrongfully refused him something, or
27
wrongfully affected his title to something". It has been rightly
noticed that the apex courts of the sub-continent were
influenced by the English decisions. However, in the case of
Mian Fazal Din v. Lahore Improvement Trust, 21 DLR (SC)
225, the Supreme Court of Pakistan had taken somewhat liberal
view to the following effect : “........the right considered sufficient for
maintaining a proceeding of this nature is not necessarily a right in the
strict juristic sense; but it is enough if the applicant discloses that he had
a personal interest in the performance of the legal duty, which if not
performed or performed in a manner not permitted by law, would result
in the loss of some personal benefit or advantage or the curtailment of a
privilege or liberty or franchise.” The High Court Division rightly
noticed that with the increase of governmental functions the English
Courts found the necessity of liberalizing the rule on locus standi view
to preserve the integrity of the rule of law in the cases of R.V.
Metropolitan Police Commissioner ex p. Blackburn [1968] 1 All E.R.
763, Blackburn v. Attorney-General [1971] 2 All E.R. 1380 and of R.V.
Metropolitan Police Commissioner ex p. Blackburn [1973] All E.R. 324
wherein the duty owed by the public authorities was to the general
public and not to an individual or to a determinate class of persons and
the applicants were found to have locus standi as they had ‘sufficient
28
interest’ in the performance of the public duty. The Supreme Court of
India in the case of S.P. Gupta and others v. President of India and others
reported in AIR 1982 SC 149 observed “Where a legal wrong or a legal
injury is caused to a person or to a determinate class of persons by
reason of violation of any constitutional or legal right or any burden is
imposed in contravention of any constitutional or legal provision or
without authority of law or any such legal wrong or legal injury or illegal
burden is threatened and such person or determinate class of persons is,
by reason of poverty, helplessness of disability or socially or
economically disadvantaged position, unable to approach the Court for
relief, any member of the public can maintain an application...... seeking
judicial redress for the legal wrong or injury caused to such person or
determinate class of persons.”
In the case of Bangladesh Sangbadpatra Parishad Vs- Bangladesh
and others reported in 43 DLR (AD) 126, the Association of news paper-
owners as the petitioners challenged an award delivered by the Wage
Board. In this case public interest litigation was not involved. The news
paper-owners were competent to challenge the award themselves. The
Appellate Division held that the Association of the news paper-owners
had no locus standi to file the case. However, in the case of Bangladesh
Retired Government Employees’ Welfare Association Vs. Bangladesh
29
reported in 46 DLR (HCD) 426, the High Court Division held that the
Retired Government Employees’ Welfare Association had a locus standi
to file the case observing that: “Since the Association has an interest in
ventilating the common grievance of all its members who are retired
Government employees, in our view, this Association is a ‘person
aggrieved’........”
In the instant case the High Court Division observed: “The
expression ‘person aggrieved’ means a person who even without being
personally affected has sufficient interest in the matter in dispute. When
a public functionary has a public duty owed to the public in general,
every citizen has sufficient interest in the performance of that public
duty.” In the case of Dr. Mohiuddin Faroque v. Bangladesh reported in
49 DLR (AD)1, Mostafa kamal, CJ observed: “48..............the traditional
view remains true, valid and effective till to-day in so far as-individual
rights and individual infraction thereof are concerned. But when a public
injury or public wrong or infraction of a fundamental right affecting an
indeterminate number of people is involved, it is not necessary, in the
scheme of our Constitution, that the multitude of individuals who have
been collectively wronged or injured or whose collective fundamental
rights have been invaded are to invoke the jurisdiction under Article 102
in a multitude of individual writ petitions, each representing his own
30
portion of concern. In so far as it concerns public wrong or public injury
or invasion of fundamental rights of an indeterminate number of people,
any member of the public, being a citizen, suffering the common injury
or common invasion in common with others or any citizen or an
indigenous association, as distinguished from a local component of a
foreign organization, espousing that particular cause is a person
aggrieved and has the right to invoke the jurisdiction under Article 102.”
In the said case B.B. Roy Chowdhury,J observed: “In this
backdrop the meaning of the expression “person aggrieved” occurring in
the aforesaid clauses (1) and (2) (a) of Article 102 is to be understood
and not in an isolated manner. It cannot be conceived that its
interpretation should be purged of the spirit of the Constitution as clearly
indicated in the Preamble and other provisions of our Constitution, as
discussed above. It is unthinkable that the framers of the Constitution
had in their mind that the grievances of millions of our people should go
unredressed, merely because they are unable to reach the doors of the
court owing to abject poverty, illiteracy, ignorance and disadvantaged
condition. It could never have been the intention of the framers of the
Constitution to outclass them. In such harrowing conditions of our
people in general if socially conscious and public-spirited persons are
not allowed to approach the court on behalf of the public or a section
31
thereof for enforcement of their rights the very scheme of the
Constitution will be frustrated. The inescapable conclusion, therefore, is
that the expression “person aggrieved” means not only any person who
is personally aggrieved but also one whose heart bleeds for his less
fortunate fellow beings for a wrong done by the Government, or a local
authority in not fulfilling its constitutional or statutory obligations. It
does not however, extend to a person who is an interloper and interferes
with things which do not concern him. This approach is in keeping with
the constitutional principles that are being evolved in the recent times in
different countries.”
It appears that the writ petitioner-respondent No.1 is a member of
the judicial service and the Secretary-General of Bangladesh judicial
Service Association. He averred that he is conscious of his duty as a
citizen in consonance with Article 21 of the Constitution and to ensure
the prevention of illegal and unconstitutional encroachments upon the
civil rights of the indefinite number of people or citizen of Bangladesh
he is interested in the welfare of those people of the Republic and aware
of the fundamental rights enshrined in Articles 27 and 31 of the
Constitution. In view of the statements made in the writ petition the writ
petitioner-respondent No.1 having sufficient interest feels aggrieved by
the impugned Warrant of precedence and accordingly he filed the writ
32
petition in his capacity as a concerned, affected and aggrieved person to
protect the interest of indefinite number of people of Bangladesh and to
uphold the rule of law by way of public interest litigation and to prevent
illegal and arbitrary placement of the constitutional functionaries and the
members of the judicial service in inappropriate places in the Warrant of
Precedence in derogation of their dignity and status in public perception.
The writ petitioner does not appear to be either an officious by-stander
or an interloper or a busy body to invoke writ jurisdiction under Article
102 of the Constitution to bring to the notice of the High Court Division
a public wrong or a public injury which is justiciable. The High Court
Division having relied on the principles enunciated in the case of
secretary, Ministry of Finance v. Md. Masdar Hossain and others 52
DLR (AD) 82, Kazi Mokhlesur Rahman v. Bangladesh and another. 26
DLR (AD) 44 and Ekhushey Television Ltd. and others v. Dr.
Chowdhory Mahmood Hasan and others, 54 DLR (AD) 130 rightly held
that it is a probono publico litigation and the writ petitioner being a
person aggrieved within the meaning of Article 102 of the Constitution
has locus standi to invoke the writ jurisdiction.
On the question of judicial review of the impugned warrant of
precedence the High Court Division observed as under:
33
“In judicial review, the Court is concerned with the
question whether the impugned action is lawful or unlawful
and the basic power of the court in relation to an illegal
decision is to quash it. If the matter has to be decided again,
it must be done by the original deciding authority. The court
exercises the power of judicial review on the basis that
powers can be validly exercised only within their limits and
a public functionary is not to be allowed to transgress the
limits of his authority conferred by the constitution or the
laws. The court also exercises the power of judicial review
if an impugned action or decision is malafide and in case of
violation of fundamental rights.
Judicial review is a common law remedy in England.
In ‘Administrative Law”, by H.W.R. Wade, 6th
edition, it
has been mentioned at page 280 “The courts of law have
inherent jurisdiction, as a matter of common law, to prevent
administrative authorities from exceeding their powers or
neglecting their duties.” The power of judicial review
conferred by Article 102 in our jurisdiction is a basic
feature of the constitution and in view of the decision in
Anwar Hossain Chowdhury’s case (1989) BLD (Special
34
Issue)1, it can not be taken away or curtailed even by
amendment of the Constitution.”
The High Court Division has taken the above views on
consideration of the cases of Apex Court including the case of Dr.
Mohiuddin Farooque V. Bangladesh, 49 DLR(AD)1. In the case of
Mohiuddin Farooque, this Division observed:
“The expression ‘person aggrieved’ means a person
who even without being personally affected has sufficient
interest in the matter in dispute. When a public functionary
has a public duty owed to the public in general, every
citizen has sufficient interest in the performance of that
public duty.”
We fully endorse the views taken by the High Court Division.
We have to decide whether the civil executive officers are within
the scheme of the constitution and whether judicial officers are different
in respect of powers and functions from the civil executive officers and
whether the civil executive officers can be treated as inferior or
subordinate to the judicial officers or vice versa. In Masder Hossain’s
case the Appellate Division having considered the provisions and
scheme of the constitution held that Chapter II of Part VI of the
Constitution contains provisions for the subordinate judiciary and that
35
judicial service is quite separate and distinct from the executive service
of the Republic. This court observed: “The judicial service has a
permanent entity as a separate service altogether and it must always
remain so in order that Chapter II of Part VI is not rendered nugatory.”
The members of the subordinate judiciary are independent in the
exercise of their judicial functions while members of the administrative
executive service carries out the decisions of the political executives and
they are not independent in the discharge of their duty and therefore, the
members of the administrative executive service or members of the other
services cannot be placed on a par with the members of the judicial
service or subordinate judiciary either constitutionally or functionally.
Therefore, there is no difficulty in holding that though civil executive
officers being in the service of the Republic are within the scheme of the
Constitution they are different in respect of powers and functions from
the judicial officers. In the scheme of the Constitution and in view of the
judgment passed in Masder Hossain’s case we have no hesitation in
holding that the members of the judicial service cannot be treated
subordinate to the administrative executives and vice versa.
In view of this Division’s decision in Masder Hossain’s case that
judicial service is a separate service altogether from the administrative
executive service and independent in the discharge of its judicial
36
function and in view of our finding that writ petitioner-respondent No.1
being a member of the judicial service is an aggrieved person to uphold
the legal rights of the writ petitioner-respondent no.1 and other judicial
officers which have been violated by the impugned Warrant of
precedence placing the constitutional functionaries and the members of
the judicial service i.e. the District judges and other judicial officers
below their status and positions in derogation of their dignity and status
in public perception.
In this connection the High Court Division held that ‘The three
organs of the State, namely, the Executive, the Legislature and the
Judiciary are headed by the Prime Minister, the Speaker and the Chief
Justice respectively and the three organs are to perform their respective
functions within the bounds set by the Constitution. The political
executives, that is to say, the Ministers including the Prime Minister
exercise the executive power of Republic. The legislators exercise the
legislative power while the Judges of both the Higher Judiciary and the
Subordinate Judiciary exercise the judicial power of the Republic. It
must not be lost sight of the fact that in the case of Mujibur Rahman
(Md) ...V... Government of Bangladesh, 33 DLR (AD) 111, it was held
in paragraph 71 that both “the Supreme Court and the Sub-ordinate
Courts are the repository of judicial power of the State.”
37
Constitutionally, functionally and structurally, judicial service stands on
a different level from the civil administrative executive services of the
Republic. While the function of the civil administrative executive
services is to assist the political executives in formulation of policies and
in execution of the policy decisions of the Government of the day, the
function of the judicial service is neither of them. It is an independent
arm of the Republic which sits on judgment over parliamentary,
executive and quasi-judicial actions, decisions and orders. To equate and
to put on the same plane the judicial service with the civil administrative
executive services is to treat two unequals as equals”.
The High Court Division has rightly held the functions of the
three organs of the state which are independent in the performance of its
respective fields. Mr. Murad Reza, learned Additional Attorney General
fails to repel ... the observations of the High Court Division.
We have perused the Warrant of Precedence of the neighbouring
countries. In India the president’s Secretariat by notification dated 26-
07-1979 issued the following table with respect to the rank and
precedence of the persons named therein, the relevant entries of which
have been stated below:-
Serial No. “1. President.
2. Vice-President.
38
3. Prime Minister.
4. Governors of states within
their respective states.
5. Former Presidents.
5A.....................................................
6. Chief justice of India.
speaker of the Lok Sabha
7. Cabinet Minister of the union...
7A...........................................................
8. ........................................................
9. judges of the Supreme Court .
9A..............................................................
10. ........................................................
11. Attorney General, Cabinet
Secretary...............................................
12. Chiefs of Staff holding the rank of full
General of equivalent rank.
13. ...............................................................
17. Chairman, Central Administrative Tribunal.
.............................................................................
Chairman, union service Commission.
39
18.................................
23. Army commander/ Vice Chief of the Army
Staff or equivalent in other in other Services.
.......................................................................
Secretary to the president.
Secretary to prime Minister.
24. ..........................................................
26. Joint secretaries to the Government of India
and officers of equivalent rank, officers of the
rank equivalent rank.
Note 1: The order in this Table of Precedence is
meant for state and Ceremonial occasions and
has no application in the day-to-day business of
the Government........ ..............................”
The Warrant of Precedence for Pakistan is a protocol list at
which Government of Pakistan functions and officials are seated
according to their rank and office. The relevant entries in the table is
modified on 13-11-2010 as under:
Article No. “1. President of Pakistan.
Prime Minister of Pakistan.
..............................................................
40
2. Speaker of the National Assembly of
Pakistan.
...........................................................
3. Chief justice of the Supreme Court of
Pakistan Senior Federal Ministers.
.....................................................................
4. ...............................................................
......................................................................
Attorney General to the Government of
Pakistan (If of the Status of Federal Minister).
5. ...................................................................
6. Chief of the Army Staff.
Chief of the Naval Staff.
Chief of the Air Staff.
7. ...............................................................
8. ..............................................................
9. ..............................................................
10. Advisors/Special Assistants to the Prime
Minister Secretaries General to the Federal
Government.
.................................................................
41
11. Envoys Extraordinary and Ministers
Plenipotentiary.
12. judges of the Supreme Court of Pakistan.
................................................................
..................................................................
17. Attorney General for Pakistan.
................................................................
24. Senior joint Secretaries/joint Secretaries
to the Federal Government.
...................................................................
25...............................................................
26. Deputy Director General intelligence
Bureau.
.................................................................
District and Session judge.
..................................................................
Additional District and Session judges.
................................................................
29...........................................................
Extra Assistant Commissioners/ Deputy
District officers.
42
judicial Magistrate/Civil judge.
Deputy Superintendents of Police.
30.....................................................
“The Order of Precedence in Sri Lanka the protocol list at which
Sri Lanka government officials are seated according to their rank. This is
not the list of succession.
● The President
● The Prime Minister
● The Speaker of the Parliament
● ......................................................................
● .....................................................................
● ......................................................................
● The Chief justice
● ......................................................................
● ......................................................................
● ........................................................................
● Members of the Parliament of Sri Lanka. There is no
established order of precedence over members of parliament in general,
although each party has its internal ranking.
● Attorney General
● Judges of the Supreme Court of Sri Lanka
43
●.................................................................
●...............................................................
●...........................................................................
“The following is the Australia Table of Precedence:
1. The Queen of Australia (Elizabeth II)
2. The Governor-General of Australia
3. .................................................................................
4. The prime Minister
5. The president of the Senate and the Speaker of the House of
Representatives in order of appointment:
6. The Chief Justice of Australia
7. ..........................................................................................
8. Members of the Federal Executive Council:
Ministers...............................................................................
22. The Chief of the Defence Force
23. .........................................................................................
24. Members of parliament (see list of Australian Senators
and list of members of the Australian House of
Representatives)
44
25. Judges of Federal courts and Deputy Presidents of the
Australian Conciliation and Arbitration Commission in order
of appointment.
26. ......................................................................................
..........................................................................................
39. The Secretaries of Departments of the Australian public
Service and their peers.
1. Vice-Chief of the Defence Force.
2. Chief of the Army.
3. Chief of the navy.
4. Chief of the Air Force.
42..........................................................................................”
It has been found that in those countries their Warrant of
Precedence are different from that of Bangladesh. Because in the notes,
in serial No.1 of the impugned Warrant of Precedence it has been
stipulated that the order in the Warrant of Precedence is to be observed
for State and ceremonial occasions as well as for all purposes of the
Government. But the Warrant of Precedence of the neighbouring
countries are not similar because in those countries the Warrant of
Precedence are not being used for all purposes of the State. In view of
the above, the High Court Division has rightly held that ‘this is perhaps
45
the only instrument of the government for determination of one’s
relative status in the eyes of the public’. The High Court Division having
analyzed the impugned Warrant of Precedence found that the Chief
Justice has been downgraded to Serial No.4 without any justifiable
reason while the Speaker has been upgraded to Serial No.3 of the
impugned Warrant of Precedence though in the Warrant of Precedence
of 1975 both of them were placed at Serial No.4.
It is to be noted that Vice-President was placed at Serial No.2 and
the Prime Minister was placed Serial No.3 of the Table of the Warrant of
Precedence of 1975. Because of the abolition of the post of Vice-
President the post of Prime Minister was upgraded to Serial No.2 and the
Speaker was upgraded to Serial No.3 alone keeping the Chief Justice in
Serial No.4 thereby degrading the position of the Chief Justice which is
not contemplated in the Constitution. The Chief Justice should be placed
at Serial No.3 of the impugned Warrant of Precedence along with the
Speaker. Similarly the Judges of the Appellate Division should be placed
at Serial No.7 and those of the High Court Division as well as the
Attorney General be placed at Serial No.8. The Members of Parliament,
the Comptroller and Auditor General and Ombudsman should be placed
at Serial No. 12. The Chairman of the Public Service Commission
should also be placed at Serial No.15 in the impugned Warrant of
46
Precedence. We hope that the Government shall act accordingly in the
light of the above observation.
The High Court Division rightly found that many constitutional
functionaries are not placed in proper place of the table of the Warrant of
Precedence but the Cabinet Secretary and other senior administrative
executives and some other functionaries have been placed above them
and bracketed at Serial No.12, but some constitutional functionaries like
the Members of Parliament have been placed at Serial No.13, and the
Attorney General, Comptroller and Auditor-General and Ombudsman
have been placed at Serial No.15, and the Chairman of the Public
Service Commission has been placed at Serial No.16, in derogation of
their status and position as envisaged in the Constitution. The High
Court Division having considered the respective status and positions of
different constitutional functionaries and the persons in service of the
Republic rightly held that though impugned Warrant of Precedence is a
policy decision of the Government yet “in the absence of evidence of
any discernible guidelines, objective standards, criteria or yardsticks
upon-which the impugned Warrant of Precedence is ought to be
predicated, we feel constrained to hold that the said Warrant of
Precedence cannot shrug off the disqualification of being arbitrary,
47
irrational, whimsical and capricious and is, therefore, subject to judicial
review under Article 102 of the Constitution.”
We do not accept the contention of Mr. Abdur Rob Chowdhury
and Mr. Murad Reza that the object of determining the warrant of
precedence in relation to their work for the entire country. We also fully
endorse the views that the Warrant of Precedence being a policy decision
of the government which is not amenable under Article 102 of the
Constitution. This warrant of precedence no doubt carries the status,
benefits and other facilities. Unless and until an officer attains certain
status, he is not entitled to use a vehicle or accommodation. In the
administrative services as soon as an officer is promoted to the rank of
Joint Secretary, he is entitled to use a vehicle and such other status and
benefits. If such officer is promoted to the post of Additional Secretary,
he will get corresponding higher benefits than a Joint Secretary and a
Secretary to the Government is getting much higher benefits than an
Additional Secretary. This will be evident from the following fact.
When this judgment was being prepared, the
Ministry of Public Administration by notification
dated 29th
January, 2015 published under the heading
“cÖvwaKvicªvß miKvwi Kg©KZ©v‡`i my gy³ we‡kl AwMÖg Ges
Mvwo †mev bM`vqb bxwZgvjv, 2014 (ms‡kvwaZ) |”
In the definition clause;
(M) ÒcÖvwaKvicÖvß Kg©KZ©vÓ A_©-
(A) miKv‡ii hyM¥-mwPe, AwZiw³ mwPe I mwPe,
48
(Av) we.wm.Gm. (BKbwgK) K¨vWv‡ii hyM¥-cÖavb ev
Z`~aŸ© Kg©KZv©, †jwRm‡jwUf I msm` welqK wefv‡Mi hyM¥-
mwPe (WªvdwUs) †_‡K Z`~aŸ© ch©v‡qi Kg©KZv© hviv miKvwi
hvbevnb Awa`ßi n‡Z mve©¶wYK e¨env‡ii Rb¨ Mvwoi
myweav cÖvß Z‡e Dwj−wLZ c`mg~‡n Pzw³‡Z ev †cÖl‡Y
wb‡qvwRZ Kg©KZ©ve„›` Gi Aš—fy©³ n‡e bv;
Paragraph 4 provides the qualification
for availing special advance facilities which are as
under:
"4| we‡kl AwMÖg myweav cÖvwßi †hvM¨Zv
|Ñ(1) G bxwZgvjvi Aaxb we‡kl AwMÖg myweav cÖvwßi
Rb¨ mswk−ó Kg©KZ©v‡K mve©¶wYK Mvwo e¨env‡ii
cÖvwaKvicÖvß Kg©KZ©v n‡Z n‡e|
(2) †Kvb cÖvwaKvicÖvß Kg©KZ©v Mvwo
†mev bM`vq‡bi †PK D‡Ëvjb Ki‡j wZwb Zv cÖZ¨vnvi
Ki‡Z cvi‡e bv| Gi e¨Z¨q n‡j kZKiv 15 fvM nv‡i my
cÖ vb Ki‡Z n‡e|
(3) bxwZ 4 (1) I (2) Gi wbgœewY©Z ‡¶‡Î †Kvb
GKRb cÖvwaKvicÖvß Kg©KZv© G bxwZgvjvi Aaxb Mvwo
µ‡qi Rb¨ we‡kl AwMÖg myweav cv‡eb, h_v t
49
(K) cÖvwaKvicÖvß Kg©KZv©i cÖvc¨Zv hZw`b _vK‡e
ZZw`‡bi g‡a¨ Av‡e`b Ki‡Z cvi‡eb| Z‡e gÄywi Av‡`k
Rvwii ZvwiL n‡Z PvKyix Aek¨B GK eQi _vK‡Z n‡e;
(L) bxwZgvjv Rvwii ci, †Kvb cÖvwaKvicÖvß
Kg©KZv© miKvwi hvbevnb Awa`ßi n‡Z Mvwo myweav MÖnY
Ki‡jI Mvwo †mev bM`vq‡bi Av‡e`b Ki‡Z cvi‡eb| wKš‘
we‡kl AwMÖg MÖnYc~e©K Mvwo µ‡qi ci hvbevnb Awa`ßi
Mvwo e¨venv‡ii myyweav Avi envj _vK‡e bv|"
Under paragraph 6 provisions have been made for affording
advance amount for purchasing a vehicle as under:
"6| we‡kl AwMÖg gÄy‡ii kZ©|Ñ(1)
miKv‡ii c‡¶ RbcÖkvmb gš¿Yvjq G bxwZgvjvi Aaxb
Mvwo µ‡qi AwMÖg gÄyiKvix KZ…©c¶ e‡j we‡ewPZ n‡e|
(2) cÖvwaKvicÖvß Kg©KZ©ve„›` cwiwkó-ÔKÕ di‡g
AwMÖ‡gi Av‡e`b h_vh_ KZ…©c‡¶i gva¨‡g RbcÖkvmb
gš¿Yvj‡qi mwPe eivei `vwLj Ki‡eb|
(3) bxwZ 6 (1) I G bxwZgvjvi Ab¨vb¨ D‡Ïk¨
c~iYK‡í miKvi RbcÖkvmb gš¿jv‡qi AbyK~‡j cÖ‡qvRbxq
ev‡RU eivÏ Ki‡e|
(4) miKvi GKRb cÖvwaKvicÖvß Kg©KZ©v‡K Mvwo
µq Ges Gi Avbylw½K Ab¨vb¨ LiPvw` †hgb †iwR‡÷ªkb,
wdU‡bm, U¨v· †Uv‡Kb BZ¨vw` mKj LiP wbe©v‡ni Rb¨
50
GKKvjxb my gy³ AwMÖg wn‡m‡e m‡e©v”P 25,00,000/-
(cuwPk j¶) UvKv cÖ vb Ki‡Z cvi‡e| G Qvov evRvi
g~‡j¨i mv‡_ m½wZ †i‡L hyw³m½Z mgq Aš—i Aš—i miKvi
we‡kl AwMÖ‡gi cwigvY cybt wbav©iY Ki‡Z cvi‡e|
(5) bxwZ 6 (2) Gi Aaxb Av‡e`bKvix‡`i ga¨
n‡Z †R¨ôZv Abymv‡i we‡kl AwMÖg gÄyi Ki‡Z n‡e,Z‡e
G‡¶‡Î Aemi Mg‡bi ev wc.Avi.Gj. wbKUeZx©
Kg©KZv©‡`i AMÖvwaKvi cÖ vb Ki‡Z n‡e|
(6) ‡Kvb Kg©KZv© Zvi mgMÖ PvKzixKv‡j 01 (GK)
ev‡ii †ekx G bxwZgvjvi Aaxb †Kvb AwMÖg MÖnY Ki‡Z
cvi‡e bv|"
In the definition clause "cÖvwaKvicÖvß Kg©KZv©" means Joint Secretary,
Additional Secretary, Secretary and some other officers of similar ranks
who are entitled to full time use of a vehicle. Those officers will be
entitled to advance amount of money for purchasing a vehicle. In
paragraph 10 it is stated that such officers shall be entitled to Tk.45,000/-
per month for the maintenance, fuel, diver’s salary etc. The advance
amount shall be adjusted by one hundred twenty equal installments and
after such adjustment such officer shall be entitled to own the car free
from all encumbrances. Such facilities are not given to a judicial officer.
Therefore, though the Warrant of Precedence is a policy decision of the
Government, it is used for all purposes of the Government. It also carries
51
with status, benefits and perks. Mr. Rokonuddin Mahmood submitted
that the District Judges are not entitled to use the VIP lounge in the Air
Ports in Bangladesh while leaving the country and entering into the
country, whereas the Joint Secretaries and other officers holding the
similar status are using those benefits. On our query in this regard, the
learned Additional Attorney General fails to give any reply as to whether
the submissions of Mr. Mahmood is correct or not. In the absence of
repelling the submission, we may accept the submission of Mr.
Rokonuddin Mahmood. It is very unfortunate to note that the District
Judges who are holding the highest post in the subordinate judiciary are
not given the status and such benefits, they are legally entitled to.
On the question of the placement of the District Judges in the
Table of Warrant of Precedence the High Court Division has made a
distinction between the Judges of the higher judiciary and the lower
judiciary and held as under:
“In that regard, we note that in Article 152(1) of the
Constitution, ‘Judicial service’, ‘the service of the
Republic’ and ‘District Judge’, amongst others, have been
defined. “Judicial service” means a service comprising
persons holding judicial posts not being posts superior to
that of a District Judge. ‘The service of the Republic”
52
means any service, post or office whether in a civil or
military capacity, in respect of the Government of
Bangladesh, and any other service declared by law to be a
service of the Republic. “District Judge” includes
Additional District Judge.”
“The logic that the District Judges and Deputy Commissioners
being district level officials have been equated with and bracketed
together at serial No. 24 in the Table of the impugned Warrant of
Precedence is fallacious for simple reason that the District Judges
wield the state-authority. Again, Deputy Secretaries to the
Government being national-level post holders have been placed
below the Deputy Commissioners at serial No. 25 in the Table. So
we think, the impugned Warrant of Precedence has no sound
basis.”
As regards the placement of the District Judges at serial No. 24 in
the Table while the Judges of the High Court Division at serial No. 9, the
High Court Division held that this placement has no rational basis. It
observed :
“Judges of the High Court Division have been placed at
serial No. 9, though District Judges have been placed at
serial No. 24 in the Table of the impugned Warrant of
53
Precedence. But when a District Judge is appointed a Judge
of the High Court Division under Article 95(1) of the
Constitution, he makes a quantum leap from serial No. 24 to
serial No. 9. The non-placement of the District Judges at a
serial number in close proximity to that of the Judges of the
High Court Division is in absolute disregard of the
constitutionally recognised potential of upward mobility is
really astounding.”
Mr. Murad Reza, the learned Additional Attorney General was unable to
give any satisfactory reply in this regard. The placement of those two
offices as above is clear indicative that it was an arbitrary exercise of
discretionary power. Article 95(2)(b) provides that a Judge of the
Supreme Court shall be appointed by the President if he has, for not less
than ten years, held judicial office in the territory of Bangladesh’. At
present a judicial officer cannot become a District Judge unless he has
minimum twenty years in the judicial service.
The District Judges being the highest post in the judicial service
cannot be equated with or placed at par with administrative and defence
executives at serial No.24 in the Warrant of Precedence and thereby the
position and status of the District Judges have been degraded for all
practical purposes. It will not be out of place to mention here that in
54
view of this pronouncement, the observations made by this Division on
14.03.2013 in Civil Appeal No. 79 of 1999 stands reviewed. In fact, that
order was made in order to remove the anomaly relating to the payment
of salaries and other benefits to the Judges of the subordinate judiciary in
pursuance of the Judicial Pay Commission Report that was not
implemented for a long time. But by this pronouncement, the status of
District Judges are upgraded equivalent to the status of the Secretaries to
the Government accordingly, the District Judges and equivalent judicial
officers will be entitled to the status and other benefits on the basis of the
direction given below.
It has already been noticed that the impugned Warrant of
Precedence is to be observed for all purposes of the Government. The
placement of District Judges at Serial No.24 in the Table is derogatory to
the dignity and status of the District Judges.
In view of the above discussions and findings it would not be
proper to place the District Judges and members of judicial service
holding equivalent judicial posts in the Table above the Chiefs of
Defence Services. Rather ends of justice would be best served if the
District Judges and equivalent judicial officers are placed in the same
table of the Warrant of Precedence along with the Secretaries and
equivalent public servants. There is no denying that members of the
55
judicial service (i.e., the subordinate judiciary) are not holders of the
constitutional posts but they being public servants are in the service of
the Republic and the nature of their service is totally different from the
civil administrative executives. District Judges and holders of the
equivalent judicial posts are the highest posts in the subordinate
judiciary. In view of the provisions of the Article 116A of the
Constitution all persons employed in the judicial service and all
magistrates exercising judicial functions shall be independent in the
exercise of their judicial functions, so it is immaterial to say that
members of judicial service or the subordinate judiciary are above the
senior administrative and defence executives.
In this context, it is pertinent to state here that the three organs of
the State, namely, the executives, legislatures and judiciary, are to
perform their respective functions within the perimeters set by the
Constitution. For observing harmonious relationship amongst the three
organs of the State, the Constitution recognises and gives effect to the
concept of equality among the three organs of the State and the concept
of check and balances. Therefore, the impugned Warrant of Precedence
should be framed in such a manner so as to reflect the concept of
equality amongst the three organs of the State.
56
As regards the eight-point directives issued by the High Court
Division an argument has been advanced that the judiciary cannot issue
such directives upon the writ respondent No.1 for making a new Warrant
of Precedence. In the facts and circumstances of the case, it has to be
taken into consideration that the directives issued by the High Court
Division cannot be issued to follow in verbatim and in that view of the
matter, the impugned Warrant of Precedence should be modified and the
eight-point directives of the High Court Division should also be
modified because in the present case the aforesaid deviation from the
constitutional arrangement has been made in the impugned Warrant of
Precedence by placing some of the constitutional functionaries and the
members of the judicial service inappropriate places in the Warrant of
Precedence in derogation of their dignity and status. This Warrant of
Precedence is illogical will be evident from the fact that the Attorney
General has been placed at serial No. 15, below the posts of some civil
and other executives. He is the chief law officer of the country. In India
the Attorney General has been placed together with the Cabinet
Secretary and above the Chiefs of staff holding the rank of full General.
In Sri Lanka he has been placed above the Judges of the Supreme Court.
In view of these anomaly the High Court Division rightly held that ‘a
bare reading of the Table of the impugned Warrant of Precedence, it is
57
evident that some constitutional and public functionaries have been
placed together at different serial numbers haphazardly, arbitrarily,
irrationally, inequitably and unreasonably.’
In this context we may profitably refer to the decisions of the apex
courts of the sub-continent. In the case of Secretary, Ministry of Finance
Vs. Masdar Hossain, 52 DLR(AD)82, an argument was made by the
learned Attorney-General that the judiciary cannot direct the Parliament
to adopt legislative measures or direct the President to frame Rules under
the proviso to Articles 133 of the Constitution. Mustafa Kamal, C.J. has
rightly held relying upon certain decisions of this Court that-
“Although we shall depart in some ways from the direction
given by the High Court Division, we think that in the present
case there is a constitutional deviation and constitutional
arrangements have been interfered with and altered both by the
Parliament by enacting the Act and by the Government by
issuing various Orders in respect of the judicial service. For
long 28 years after liberation sub-paragraph (6) of paragraph 6
of the Fourth Schedule to the Constitution remains
unimplemented. When Parliament and the executive, instead of
implementing the provisions of Chapter II of Part VI follow a
different course not sanctioned by the Constitution, the higher
58
judiciary is within its jurisdiction to bring back the Parliament
and the executive from constitutional derailment and give
necessary directions to follow the constitutional course. This
exercise was made by this Court in the case of Kudrat-e-Elahi
Panir Vs. Bangladesh, 44 DLR(AD) 319. We do not see why
the High Court Division or this Court cannot repeat that
exercise when a constitutional deviation is detected and when
there is a constitutional mandate to implement certain
provisions of the Constitution. The Supreme Court of Pakistan
too, consistent with the mandate contained in Article 175 of the
present Constitution of Pakistan, to secure the separation of the
judiciary from the executive, issued directions in the nature of
adoption of legislative and executive measures in the case of
Government of Sindh Vs. Sharaf Faridi, PLD 1994 SC 105.”
In the case of All India Judges’ Association V. union of India,
AIR 1993 SC 2493, Supreme Court of India observed:
“However, it cannot be contended that pending such
essential reforms, the overdue demands of the judiciary can
be overlooked. As early as in 1958, the Law Commission of
India in its 14th report on the System of Judicial
Administration in this country made certain
59
recommendations to improve the system
.......................................................................................”
The report made recommendations in respect of various aspects of the
service conditions of the judicial officers and also emphasised that there
was no connection between the service conditions of the judiciary and
those of the other services .........................................................................
“These recommendations were made to improve the system of
justice and thereby to improve the content and quality of justice
administered by the Courts. The recommendations were made in the year
1958. Over the years the circumstances which impelled the said
recommendations have undergone a metamorphosis. Instead of
improving, they have deteriorated making it necessary to update and
better them to meet the needs of the present times.”
“Although the report made the recommendations in question to
further the implementation of the Constitutional mandate to make proper
justice available to the people, the mandate has been consistently ignored
both by the executive and the legislature by neglecting to improve the
service conditions. By giving the directions in question, this Court has
only called upon the executive and the legislature to implement their
imperative duties. The Courts do issue directions to the authorities to
perform their obligatory duties whenever there is a failure on their part
60
to discharge them. The power to issue such mandates in proper cases
belongs to the Courts. As has been pointed out in the judgment under
review, this Court was impelled to issue the said directions firstly
because the executive and the legislature had failed in their obligations
in that behalf. Secondly, the judiciary in this country is a unified
institution judicially though not administratively. Hence uniform
designations and hierarchy, with uniform service conditions are
unavoidable necessary consequences. The further directions given,
therefore, should not be looked upon as an encroachment on the powers
of the executive and the legislature to determine the service conditions of
the judiciary. They are directions to perform the long overdue obligatory
duties.”
When there is a deviation from the constitutional arrangements or
constitutional arrangements have been interfered with or altered by the
Government or when the Government fails to implement the provisions
of Chapter II of Part VI of the Constitution and instead follow a different
course not sanctioned by the Constitution, the High Court Division as
well as the Appellate Division is competent enough to give necessary
directions to follow the mandate of the Constitution. This means the
Apex Court of the Country is competent to issue directions upon the
authorities concerned to perform their obligatory duties whenever there
61
is a failure on their part to discharge their duties. It is stipulated that the
order in the impugned Warrant of Precedence is to be observed for State
and ceremonial occasions as well as for all purpose of the Government.
Therefore, it cannot be said that the impugned Warrant of Precedence
involves the Policy Decision of the government rather it has deviated,
altered or interfered with the constitutional arrangements or envisaged a
different course not sanctioned by the Constitution.
At this point, we feel constrained to observe that the Warrant of
Precedence of the neighbouring countries include the holders of highest
civil awards, however the impugned Warrant of Precedence of our
country does not include such dignitaries, who are not constitutional or
public functionaries. As such, it is expected that those dignitaries who
have been honoured or decorated with civil awards, e.i., Shadhinata
Padak, or Ekhushey Padak, and those valiant freedom fighters who have
been honoured with galantry awards of Bir Uttam should be included in
the Table of the impugned Warrant of Precedence in such order as
deemed appropriate.
In view of the foregoing discussions, observations and findings
the appeal is disposed of and the eight-points directives issued by the
High Court Division are hereby modified, and the impugned Warrant of
62
Precedence being based on utter irrationality and arbitrariness is to be
modified and amended in the following manner:
1) As the Constitution is the supreme law of the land, all
constitutional functionaries shall be placed first in order of
priority in the Table of the impugned Warrant of Precedence.
2) Members of judicial service holding the posts of District Judges
or equivalent posts of District Judges shall be placed at Serial
No.16 in the Table along with the Secretaries to the Government
and equivalent public servants in the service of the Republic.
3) Additional District Judges or holders of equivalent judicial posts
shall be placed at the serial number 17 immediately after the
District Judges.
Accordingly, the appeal is disposed of with expunction,
modification, observations and findings as stated above.
C.J.
J.
J.
J.
J.
The 11th January, 2015
Md. Mahbub Hossain.
APPROVED FOR REPORTING